In re Tyco MDL 02MD1335PB 03/07/07
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
In Re Tyco International Ltd.
Multidistrict Litigation Case N o . 02-md-1335-PB
ALL CASES
Opinion N o .
2007 DNH 028
MEMORANDUM AND ORDER
Plaintiffs have moved to compel Tyco International, Ltd. to
produce drafts of two Form 8-K filings and certain underlying
documents. Tyco has responded with a Motion for a Protective
Order covering the same documents.
I. BACKGROUND
On April 3 0 , 2002, Tyco’s Corporate Governance and
Nominating Committee retained Boies Schiller & Flexner, LLP (the
“Boies Firm”) “to represent Tyco in connection with the
Committee’s review and analysis of transactions between and among
Tyco and its subsidiaries and certain of Tyco’s directors and
officers, and any litigation arising from or relating to that
review.” Tyco September 2002 Form 8-K at 3 (Doc. 6 8 7 , Attach.
22). The Boies Firm initially focused its investigation on a $20
million payment that had been made by the company to former Tyco
director, Frank E . Walsh, J r . Tyco subsequently expanded the
scope of the investigation to include the “use of company funds”
and “[Tyco’s] accounting and disclosures.”
Id.
at 4 . The
company planned to include the results of its investigation in a
Form 8-K to be filed with the Securities and Exchange Commission
(“SEC”) after the Boies Firm finished “the first phase” of its
investigation.
Id.
Tyco filed a Form 8-K on September 1 0 , 2002 1
and a second Form 8-K on December 3 0 , 2002. The September and
December Forms 8-K have come to be known as the “Boies Reports.”
II. ANALYSIS
Plaintiffs have not challenged Tyco’s assertion that the
documents at issue were protected by the attorney-client
privilege when they were prepared. Instead, it argues that Tyco
waived the privilege by implication when it filed the Reports
with the SEC. I disagree.
1
Securities plaintiffs refer to the September 2002 Form 8-
K as having been filed on September 1 8 , 2002. Tyco refers to it
as having been filed on September 1 7 , 2002. The Form 8-K that
has been filed as an exhibit is dated September 1 0 , 2002. I
assume that the September 1 0 , 2002 Form 8-K is the one to which
both parties are referring.
The First Circuit has provided guidance as to when a
litigant will be deemed to have waived the attorney-client
privilege by implication. In In Re Keeper of the Records (XYZ
Corp.),
6 , 22 (1st Cir. 2003), the court reviewed a
contempt citation against a corporation that had refused to
produce allegedly privileged documents. In rejecting the
government’s argument that the corporation waived its privilege
claim by allowing its attorney to disclose legal advice to third
parties on the same subject, the court held that “the
extrajudicial disclosure of attorney-client communications, not
thereafter used by the client to gain adversarial advantage in
judicial proceedings cannot work an implied waiver of all
confidential communications on the same subject matter.”
. The court went on to justify its ruling by explaining that
the reasons that favor a broad subject matter waiver when a
litigant asserts an advice of counsel defense or seeks to elicit
testimony concerning privileged matters during the course of
trial will rarely be present when privileged information is
disclosed in a non-judicial setting.2
2
The court recognized the possibility that an
extrajudicial disclosure might result in an implied waiver of
undisclosed information in certain circumstances.
at 25 F n .
6. However, plaintiffs have failed to identify any unusual
This case is governed by the above-cited precedent. The
Boies Reports were disclosed in SEC filings rather than a
judicial proceeding. Although I have no doubt that Tyco intended
to use the reports for a variety of purposes, including to
evaluate potential claims against its former officers and to
convince regulators and prosecutors to refrain from instituting
proceedings against i t , Tyco’s intention to use the reports for
such purposes does not result in a waiver of the attorney-client
privilege that extends beyond what Tyco actually disclosed.
Accordingly, I reject the Securities plaintiffs’ Motion to Compel
Tyco to produce drafts of the Boies Reports and the underlying
documents.3
circumstances that would justify such a ruling in the present
case.
3
My ruling is narrow in scope. I do not determine that
the withheld documents are in fact protected by the attorney-client privilege. Nor do I evaluate Tyco’s alternative argument
that the withheld documents are protected by the work product
privilege. I only determine that Tyco has not waived any
privilege claim it might otherwise have by filing the Boies
Reports with the SEC. Finally, the parties should bear in mind
that information that was not protected by the attorney-client
privilege when it was acquired does not become privileged merely
because it is later communicated to counsel. To the extent that
Tyco has not already done s o , it shall produce privilege logs
identifying the draft reports and underlying documents. Any
further motions concerning the withheld documents shall be
resolved by the Magistrate Judge.
III. CONCLUSION
To the extent that the Securities plaintiffs seek an order
compelling Tyco to produce drafts of the Form 8-K filings and
related underlying documents, its Motion to Compel (Doc. N o . 687)
is denied and Tyco’s Motion for a Protective Order (Doc. N o . 710)
is granted.4
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
March 7 , 2007
cc: Counsel of Record
4
The Motion to Compel and the Motion for Protective Order
also address other issues that were resolved at a hearing on June
1 , 2006. The only other issue raised by the motions that has not
been resolved is Tyco’s request to allocate a portion of its
document production costs to the plaintiffs. I decline to
resolve that issue at the present time. Tyco may renew its
request, if necessary, at the end of the case.
